Disni v. Sec. of Justice 2014

6/13/2015 G.R. No. 203335

http://www.lawphil.net/judjuris/juri2014/feb2014/gr_203335_2014.html 1/28

Today is Saturday, June 13, 2015

Disini v. The Secretary of Justice, G.R. No. 203335, 11 February 2014 Decision, Abad [J]

Concurring and Dissenting Opinion, Sereno [J]

Concurring and Dissenting Opinion, Carpio [J]

Dissenting and Concurring Opinion, Leonen [J]

Separate Concurring Opinion, Brion [J]

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 203335 February 11, 2014

JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P. MEDINA, JANETTE TORAL and ERNESTOSONIDO, JR., Petitioners, vs.THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF THE INTERIOR AND LOCALGOVERNMENT, THE EXECUTIVE DIRECTOR OF THE INFORMATION AND COMMUNICATIONSTECHNOLOGY OFFICE, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE and THE DIRECTOR OF THENATIONAL BUREAU OF INVESTIGATION, Respondents.

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G.R. No. 203299

LOUIS "BAROK" C. BIRAOGO, Petitioner, vs.NATIONAL BUREAU OF INVESTIGATION and PHILIPPINE NATIONAL POLICE, Respondents.

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G.R. No. 203306

ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG MAMAMAYAN MOVEMENT, INC., JERRY S. YAP,BERTENI "TOTO" CAUSING, HERNANI Q. CUARE, PERCY LAPID, TRACY CABRERA, RONALDO E. RENTA,CIRILO P. SABARRE, JR., DERVIN CASTRO, ET AL., Petitioners, vs.OFFICE OF THE PRESIDENT, represented by President Benigno Simeon Aquino III, SENATE OF THEPHILIPPINES, and HOUSE OF REPRESENTATIVES, Respondents.

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G.R. No. 203359

SENATOR TEOFISTO DL GUINGONA III, Petitioner, vs.EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OFINTERIOR AND LOCAL GOVERNMENT, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE, and DIRECTOROF THE NATIONAL BUREAU OF INVESTIGATION, Respondents.

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G.R. No. 203378

ALEXANDER ADONIS, ELLEN TORDESILLAS, MA. GISELA ORDENES-CASCOLAN, H. HARRY L. ROQUE,JR., ROMEL R. BAGARES, and GILBERT T. ANDRES, Petitioners, vs.THE EXECUTIVE SECRETARY, THE DEPARTMENT OF BUDGET AND MANAGEMENT, THE DEPARTMENTOF JUSTICE, THE DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, THE NATIONAL BUREAU

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OF INVESTIGATION, THE PHILIPPINE NATIONAL POLICE, AND THE INFORMATION ANDCOMMUNICATIONS TECHNOLOGY OFFICE-DEPARTMENT OF SCIENCE AND TECHNOLOGY, Respondents.

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G.R. No. 203391

HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO, VENCER MARI CRISOSTOMO OF ANAKBAYAN, MA.KATHERINE ELONA OF THE PHILIPPINE COLLEGIAN, ISABELLE THERESE BAGUISI OF THE NATIONALUNION OF STUDENTS OF THE PHILIPPINES, ET AL., Petitioners, vs.PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary and alter-ego of President Benigno SimeonAquino III, LEILA DE LIMA in her capacity as Secretary of Justice, Respondents.

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G.R. No. 203407

BAGONG ALYANSANG MAKABAYAN SECRETARY GENERAL RENATO M. REYES, JR., National ArtistBIENVENIDO L. LUMBERA, Chairperson of Concerned Artists of the Philippines, ELMER C. LABOG,Chairperson of Kilusang Mayo Uno, CRISTINA E. PALABAY, Secretary General of Karapatan, FERDINANDR. GAITE, Chairperson of COURAGE, JOEL B. MAGLUNSOD, Vice President of Anakpawis Party-List, LANAR. LINABAN, Secretary General Gabriela Women's Party, ADOLFO ARES P. GUTIERREZ, and JULIUSGARCIA MATIBAG, Petitioners, vs.BENIGNO SIMEON C. AQUINO III, President of the Republic of the Philippines, PAQUITO N. OCHOA, JR.,Executive Secretary, SENATE OF THE PHILIPPINES, represented by SENATE PRESIDENT JUAN PONCEENRILE, HOUSE OF REPRESENTATIVES, represented by SPEAKER FELICIANO BELMONTE, JR., LEILA DELIMA, Secretary of the Department of Justice, LOUIS NAPOLEON C. CASAMBRE, Executive Director of theInformation and Communications Technology Office, NONNATUS CAESAR R. ROJAS, Director of theNational Bureau of Investigation, D/GEN. NICANOR A. BARTOLOME, Chief of the Philippine National Police,MANUEL A. ROXAS II, Secretary of the Department of the Interior and Local Government, Respondents.

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G.R. No. 203440

MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA, AMPARITA STA. MARIA, RAY PAOLO J.SANTIAGO, GILBERT V. SEMBRANO, and RYAN JEREMIAH D. QUAN (all of the Ateneo Human RightsCenter), Petitioners, vs.HONORABLE PAQUITO OCHOA in his capacity as Executive Secretary, HONORABLE LEILA DE LIMA in hercapacity as Secretary of Justice, HONORABLE MANUEL ROXAS in his capacity as Secretary of theDepartment of Interior and Local Government, The CHIEF of the Philippine National Police, The DIRECTORof the National Bureau of Investigation (all of the Executive Department of Government), Respondents.

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G.R. No. 203453

NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES (NUJP), PHILIPPINE PRESS INSTITUTE (PPI),CENTER FOR MEDIA FREEDOM AND RESPONSIBILITY, ROWENA CARRANZA PARAAN, MELINDAQUINTOS-DE JESUS, JOSEPH ALWYN ALBURO, ARIEL SEBELLINO AND THE PETITIONERS IN THE e-PETITION http://www.nujp.org/no-to-ra10175/, Petitioners, vs.THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE INTERIOR ANDLOCAL GOVERNMENT, THE SECRETARY OF BUDGET AND MANAGEMENT, THE DIRECTOR GENERAL OFTHE PHILIPPINE NATIONAL POLICE, THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION,THE CYBERCRIME INVESTIGATION AND COORDINATING CENTER, AND ALL AGENCIES ANDINSTRUMENTALITIES OF GOVERNMENT AND ALL PERSONS ACTING UNDER THEIR INSTRUCTIONS,ORDERS, DIRECTION IN RELATION TO THE IMPLEMENTATION OF REPUBLIC ACT NO. 10175,Respondents.

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G.R. No. 203454

PAUL CORNELIUS T. CASTILLO & RYAN D. ANDRES, Petitioners,

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vs.THE HON. SECRETARY OF JUSTICE THE HON. SECRETARY OF INTERIOR AND LOCAL GOVERNMENT,Respondents.

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G.R. No. 203469

ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO; BENJAMIN NOEL A. ESPINA; MARCK RONALD C.RIMORIN; JULIUS D. ROCAS; OLIVER RICHARD V. ROBILLO; AARON ERICK A. LOZADA; GERARD ADRIANP. MAGNAYE; JOSE REGINALD A. RAMOS; MA. ROSARIO T. JUAN; BRENDALYN P. RAMIREZ; MAUREENA. HERMITANIO; KRISTINE JOY S. REMENTILLA; MARICEL O. GRAY; JULIUS IVAN F. CABIGON;BENRALPH S. YU; CEBU BLOGGERS SOCIETY, INC. PRESIDENT RUBEN B. LICERA, JR; and PINOYEXPAT/OFW BLOG AWARDS, INC. COORDINATOR PEDRO E. RAHON; Petitioners, vs.HIS EXCELLENCY BENIGNO S. AQUINO III, in his capacity as President of the Republic of the Philippines;SENATE OF THE PHILIPPINES, represented by HON. JUAN PONCE ENRILE, in his capacity as SenatePresident; HOUSE OF REPRESENTATIVES, represented by FELICIANO R. BELMONTE, JR., in his capacityas Speaker of the House of Representatives; HON. PAQUITO N. OCHOA, JR., in his capacity as ExecutiveSecretary; HON. LEILA M. DE LIMA, in her capacity as Secretary of Justice; HON. LOUIS NAPOLEON C.CASAMBRE, in his capacity as Executive Director, Information and Communications Technology Office;HON. NONNATUS CAESAR R. ROJAS, in his capacity as Director, National Bureau of Investigation; andP/DGEN. NICANOR A. BARTOLOME, in his capacity as Chief, Philippine National Police, Respondents.

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G.R. No. 203501

PHILIPPINE BAR ASSOCIATION, INC., Petitioner, vs.HIS EXCELLENCY BENIGNO S. AQUINO III, in his official capacity as President of the Republic of thePhilippines; HON. PAQUITO N. OCHOA, JR., in his official capacity as Executive Secretary; HON. LEILA M.DE LIMA, in her official capacity as Secretary of Justice; LOUIS NAPOLEON C. CASAMBRE, in his officialcapacity as Executive Director, Information and Communications Technology Office; NONNATUS CAESARR. ROJAS, in his official capacity as Director of the National Bureau of Investigation; and DIRECTORGENERAL NICANOR A. BARTOLOME, in his official capacity as Chief of the Philippine National Police,Respondents.

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G.R. No. 203509

BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES, Petitioner, vs.THE EXECUTIVE SECRETARY PAQUITO OCHOA, JR., Respondent.

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G.R. No. 203515

NATIONAL PRESS CLUB OF THE PHILIPPINES, INC. represented by BENNY D. ANTIPORDA in his capacityas President and in his personal capacity, Petitioner, vs.OFFICE OF THE PRESIDENT, PRES. BENIGNO SIMEON AQUINO III, DEPARTMENT OF JUSTICE,DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, PHILIPPINE NATIONAL POLICE, NATIONALBUREAU OF INVESTIGATION, DEPARTMENT OF BUDGET AND MANAGEMENT AND ALL OTHERGOVERNMENT INSTRUMENTALITIES WHO HAVE HANDS IN THE PASSAGE AND/OR IMPLEMENTATION OFREPUBLIC ACT 10175, Respondents.

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G.R. No. 203518

PHILIPPINE INTERNET FREEDOM ALLIANCE, composed of DAKILA-PHILIPPINE COLLECTIVE FORMODERN HEROISM, represented by Leni Velasco, PARTIDO LAKAS NG MASA, represented by Cesar S.Melencio, FRANCIS EUSTON R. ACERO, MARLON ANTHONY ROMASANTA TONSON, TEODORO A.CASIO, NOEMI LARDIZABAL-DADO, IMELDA ORALES, JAMES MATTHEW B. MIRAFLOR, JUAN G.M.RAGRAGIO, MARIA FATIMA A. VILLENA, MEDARDO M. MANRIQUE, JR., LAUREN DADO, MARCO VITTORIA

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TOBIAS SUMAYAO, IRENE CHIA, ERASTUS NOEL T. DELIZO, CRISTINA SARAH E. OSORIO, ROMEOFACTOLERIN, NAOMI L. TUPAS, KENNETH KENG, ANA ALEXANDRA C. CASTRO, Petitioners, vs.THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF INTERIOR ANDLOCAL GOVERNMENT, THE SECRETARY OF SCIENCE AND TECHNOLOGY, THE EXECUTIVE DIRECTOROF THE INFORMATION TECHNOLOGY OFFICE, THE DIRECTOR OF THE NATIONAL BUREAU OFINVESTIGATION, THE CHIEF, PHILIPPINE NATIONAL POLICE, THE HEAD OF THE DOJ OFFICE OFCYBERCRIME, and THE OTHER MEMBERS OF THE CYBERCRIME INVESTIGATION AND COORDINATINGCENTER, Respondents.

D E C I S I O N

ABAD, J.:

These consolidated petitions seek to declare several provisions of Republic Act (R.A.) 10175, the CybercrimePrevention Act of 2012, unconstitutional and void.

The Facts and the Case

The cybercrime law aims to regulate access to and use of the cyberspace. Using his laptop or computer, a personcan connect to the internet, a system that links him to other computers and enable him, among other things, to:

1. Access virtual libraries and encyclopedias for all kinds of information that he needs for research, study,amusement, upliftment, or pure curiosity;

2. Post billboard-like notices or messages, including pictures and videos, for the general public or for specialaudiences like associates, classmates, or friends and read postings from them;

3. Advertise and promote goods or services and make purchases and payments;

4. Inquire and do business with institutional entities like government agencies, banks, stock exchanges, tradehouses, credit card companies, public utilities, hospitals, and schools; and

5. Communicate in writing or by voice with any person through his e-mail address or telephone.

This is cyberspace, a system that accommodates millions and billions of simultaneous and ongoing individualaccesses to and uses of the internet. The cyberspace is a boon to the need of the current generation for greaterinformation and facility of communication. But all is not well with the system since it could not filter out a number ofpersons of ill will who would want to use cyberspace technology for mischiefs and crimes. One of them can, forinstance, avail himself of the system to unjustly ruin the reputation of another or bully the latter by postingdefamatory statements against him that people can read.

And because linking with the internet opens up a user to communications from others, the ill-motivated can use thecyberspace for committing theft by hacking into or surreptitiously accessing his bank account or credit card ordefrauding him through false representations. The wicked can use the cyberspace, too, for illicit trafficking in sex orfor exposing to pornography guileless children who have access to the internet. For this reason, the government hasa legitimate right to regulate the use of cyberspace and contain and punish wrongdoings.

Notably, there are also those who would want, like vandals, to wreak or cause havoc to the computer systems andnetworks of indispensable or highly useful institutions as well as to the laptop or computer programs and memoriesof innocent individuals. They accomplish this by sending electronic viruses or virtual dynamites that destroy thosecomputer systems, networks, programs, and memories. The government certainly has the duty and the right toprevent these tomfooleries from happening and punish their perpetrators, hence the Cybercrime Prevention Act.

But petitioners claim that the means adopted by the cybercrime law for regulating undesirable cyberspace activitiesviolate certain of their constitutional rights. The government of course asserts that the law merely seeks toreasonably put order into cyberspace activities, punish wrongdoings, and prevent hurtful attacks on the system.

Pending hearing and adjudication of the issues presented in these cases, on February 5, 2013 the Court extendedthe original 120-day temporary restraining order (TRO) that it earlier issued on October 9, 2012, enjoiningrespondent government agencies from implementing the cybercrime law until further orders.

The Issues Presented

Petitioners challenge the constitutionality of the following provisions of the cybercrime law that regard certain acts ascrimes and impose penalties for their commission as well as provisions that would enable the government to trackdown and penalize violators. These provisions are:

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a. Section 4(a)(1) on Illegal Access;

b. Section 4(a)(3) on Data Interference;

c. Section 4(a)(6) on Cyber-squatting;

d. Section 4(b)(3) on Identity Theft;

e. Section 4(c)(1) on Cybersex;

f. Section 4(c)(2) on Child Pornography;

g. Section 4(c)(3) on Unsolicited Commercial Communications;

h. Section 4(c)(4) on Libel;

i. Section 5 on Aiding or Abetting and Attempt in the Commission of Cybercrimes;

j. Section 6 on the Penalty of One Degree Higher;

k. Section 7 on the Prosecution under both the Revised Penal Code (RPC) and R.A. 10175;

l. Section 8 on Penalties;

m. Section 12 on Real-Time Collection of Traffic Data;

n. Section 13 on Preservation of Computer Data;

o. Section 14 on Disclosure of Computer Data;

p. Section 15 on Search, Seizure and Examination of Computer Data;

q. Section 17 on Destruction of Computer Data;

r. Section 19 on Restricting or Blocking Access to Computer Data;

s. Section 20 on Obstruction of Justice;

t. Section 24 on Cybercrime Investigation and Coordinating Center (CICC); and

u. Section 26(a) on CICCs Powers and Functions.

Some petitioners also raise the constitutionality of related Articles 353, 354, 361, and 362 of the RPC on the crimeof libel.

The Rulings of the Court

Section 4(a)(1)

Section 4(a)(1) provides:

Section 4. Cybercrime Offenses. The following acts constitute the offense of cybercrime punishable under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

(1) Illegal Access. The access to the whole or any part of a computer system without right.

Petitioners contend that Section 4(a)(1) fails to meet the strict scrutiny standard required of laws that interfere withthe fundamental rights of the people and should thus be struck down.

The Court has in a way found the strict scrutiny standard, an American constitutional construct,1 useful indetermining the constitutionality of laws that tend to target a class of things or persons. According to this standard, alegislative classification that impermissibly interferes with the exercise of fundamental right or operates to thepeculiar class disadvantage of a suspect class is presumed unconstitutional. The burden is on the government toprove that the classification is necessary to achieve a compelling state interest and that it is the least restrictivemeans to protect such interest.2 Later, the strict scrutiny standard was used to assess the validity of laws dealingwith the regulation of speech, gender, or race as well as other fundamental rights, as expansion from its earlierapplications to equal protection.3

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In the cases before it, the Court finds nothing in Section 4(a)(1) that calls for the application of the strict scrutinystandard since no fundamental freedom, like speech, is involved in punishing what is essentially a condemnable act accessing the computer system of another without right. It is a universally condemned conduct.4

Petitioners of course fear that this section will jeopardize the work of ethical hackers, professionals who employtools and techniques used by criminal hackers but would neither damage the target systems nor steal information.Ethical hackers evaluate the target systems security and report back to the owners the vulnerabilities they found init and give instructions for how these can be remedied. Ethical hackers are the equivalent of independent auditorswho come into an organization to verify its bookkeeping records.5

Besides, a clients engagement of an ethical hacker requires an agreement between them as to the extent of thesearch, the methods to be used, and the systems to be tested. This is referred to as the "get out of jail free card."6Since the ethical hacker does his job with prior permission from the client, such permission would insulate him fromthe coverage of Section 4(a)(1).

Section 4(a)(3) of the Cybercrime Law




x x x x

(3) Data Interference. The intentional or reckless alteration, damaging, deletion or deterioration of computer data,electronic document, or electronic data message, without right, including the introduction or transmission of viruses.

Petitioners claim that Section 4(a)(3) suffers from overbreadth in that, while it seeks to discourage data interference,it intrudes into the area of protected speech and expression, creating a chilling and deterrent effect on theseguaranteed freedoms.

Under the overbreadth doctrine, a proper governmental purpose, constitutionally subject to state regulation, may notbe achieved by means that unnecessarily sweep its subject broadly, thereby invading the area of protectedfreedoms.7 But Section 4(a)(3) does not encroach on these freedoms at all. It simply punishes what essentially is aform of vandalism,8 the act of willfully destroying without right the things that belong to others, in this case theircomputer data, electronic document, or electronic data message. Such act has no connection to guaranteedfreedoms. There is no freedom to destroy other peoples computer systems and private documents.

All penal laws, like the cybercrime law, have of course an inherent chilling effect, an in terrorem effect9 or the fear ofpossible prosecution that hangs on the heads of citizens who are minded to step beyond the boundaries of what isproper. But to prevent the State from legislating criminal laws because they instill such kind of fear is to render thestate powerless in addressing and penalizing socially harmful conduct.10 Here, the chilling effect that results inparalysis is an illusion since Section 4(a)(3) clearly describes the evil that it seeks to punish and creates notendency to intimidate the free exercise of ones constitutional rights.

Besides, the overbreadth challenge places on petitioners the heavy burden of proving that under no set ofcircumstances will Section 4(a)(3) be valid.11 Petitioner has failed to discharge this burden.

Section 4(a)(6) of the Cybercrime Law




x x x x

(6) Cyber-squatting. The acquisition of domain name over the internet in bad faith to profit, mislead, destroy thereputation, and deprive others from registering the same, if such a domain name is:

(i) Similar, identical, or confusingly similar to an existing trademark registered with the appropriategovernment agency at the time of the domain name registration;

(ii) Identical or in any way similar with the name of a person other than the registrant, in case of a personalname; and

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(iii) Acquired without right or with intellectual property interests in it.

Petitioners claim that Section 4(a)(6) or cyber-squatting violates the equal protection clause12 in that, not beingnarrowly tailored, it will cause a user using his real name to suffer the same fate as those who use aliases or takethe name of another in satire, parody, or any other literary device. For example, supposing there exists a well knownbillionaire-philanthropist named "Julio Gandolfo," the law would punish for cyber-squatting both the person whoregisters such name because he claims it to be his pseudo-name and another who registers the name because ithappens to be his real name. Petitioners claim that, considering the substantial distinction between the two, the lawshould recognize the difference.

But there is no real difference whether he uses "Julio Gandolfo" which happens to be his real name or use it as apseudo-name for it is the evil purpose for which he uses the name that the law condemns. The law is reasonable inpenalizing him for acquiring the domain name in bad faith to profit, mislead, destroy reputation, or deprive otherswho are not ill-motivated of the rightful opportunity of registering the same. The challenge to the constitutionality ofSection 4(a)(6) on ground of denial of equal protection is baseless.

Section 4(b)(3) of the Cybercrime Law

Section 4(b)(3) provides:


x x x x

b) Computer-related Offenses:

x x x x

(3) Computer-related Identity Theft. The intentional acquisition, use, misuse, transfer, possession, alteration, ordeletion of identifying information belonging to another, whether natural or juridical, without right: Provided: that if nodamage has yet been caused, the penalty imposable shall be one (1) degree lower.

Petitioners claim that Section 4(b)(3) violates the constitutional rights to due process and to privacy andcorrespondence, and transgresses the freedom of the press.

The right to privacy, or the right to be let alone, was institutionalized in the 1987 Constitution as a facet of the rightprotected by the guarantee against unreasonable searches and seizures.13 But the Court acknowledged itsexistence as early as 1968 in Morfe v. Mutuc,14 it ruled that the right to privacy exists independently of itsidentification with liberty; it is in itself fully deserving of constitutional protection.

Relevant to any discussion of the right to privacy is the concept known as the "Zones of Privacy." The Courtexplained in "In the Matter of the Petition for Issuance of Writ of Habeas Corpus of Sabio v. Senator Gordon"15 therelevance of these zones to the right to privacy:

Zones of privacy are recognized and protected in our laws. Within these zones, any form of intrusion isimpermissible unless excused by law and in accordance with customary legal process. The meticulous regard weaccord to these zones arises not only from our conviction that the right to privacy is a "constitutional right" and "theright most valued by civilized men," but also from our adherence to the Universal Declaration of Human Rightswhich mandates that, "no one shall be subjected to arbitrary interference with his privacy" and "everyone has theright to the protection of the law against such interference or attacks."

Two constitutional guarantees create these zones of privacy: (a) the right against unreasonable searches16 andseizures, which is the basis of the right to be let alone, and (b) the right to privacy of communication andcorrespondence.17 In assessing the challenge that the State has impermissibly intruded into these zones of privacy,a court must determine whether a person has exhibited a reasonable expectation of privacy and, if so, whether thatexpectation has been violated by unreasonable government intrusion.18

The usual identifying information regarding a person includes his name, his citizenship, his residence address, hiscontact number, his place and date of birth, the name of his spouse if any, his occupation, and similar data.19 Thelaw punishes those who acquire or use such identifying information without right, implicitly to cause damage.Petitioners simply fail to show how government effort to curb computer-related identity theft violates the right toprivacy and correspondence as well as the right to due process of law.

Also, the charge of invalidity of this section based on the overbreadth doctrine will not hold water since the specificconducts proscribed do not intrude into guaranteed freedoms like speech. Clearly, what this section regulates arespecific actions: the acquisition, use, misuse or deletion of personal identifying data of another. There is nofundamental right to acquire anothers personal data.

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Further, petitioners fear that Section 4(b)(3) violates the freedom of the press in that journalists would be hinderedfrom accessing the unrestricted user account of a person in the news to secure information about him that could bepublished. But this is not the essence of identity theft that the law seeks to prohibit and punish. Evidently, the theft ofidentity information must be intended for an illegitimate purpose. Moreover, acquiring and disseminating informationmade public by the user himself cannot be regarded as a form of theft.

The Court has defined intent to gain as an internal act which can be established through the overt acts of theoffender, and it may be presumed from the furtive taking of useful property pertaining to another, unless specialcircumstances reveal a different intent on the part of the perpetrator.20 As such, the press, whether in quest of newsreporting or social investigation, has nothing to fear since a special circumstance is present to negate intent to gainwhich is required by this Section.

Section 4(c)(1) of the Cybercrime Law

Section 4(c)(1) provides:

Sec. 4. Cybercrime Offenses. The following acts constitute the offense of cybercrime punishable under this Act:

x x x x

(c) Content-related Offenses:

(1) Cybersex. The willful engagement, maintenance, control, or operation, directly or indirectly, of any lasciviousexhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or consideration.

Petitioners claim that the above violates the freedom of expression clause of the Constitution.21 They express fearthat private communications of sexual character between husband and wife or consenting adults, which are notregarded as crimes under the penal code, would now be regarded as crimes when done "for favor" in cyberspace. Incommon usage, the term "favor" includes "gracious kindness," "a special privilege or right granted or conceded," or"a token of love (as a ribbon) usually worn conspicuously."22 This meaning given to the term "favor" embracessocially tolerated trysts. The law as written would invite law enforcement agencies into the bedrooms of marriedcouples or consenting individuals.

But the deliberations of the Bicameral Committee of Congress on this section of the Cybercrime Prevention Act givea proper perspective on the issue. These deliberations show a lack of intent to penalize a "private showing x x xbetween and among two private persons x x x although that may be a form of obscenity to some."23 Theunderstanding of those who drew up the cybercrime law is that the element of "engaging in a business" is necessaryto constitute the illegal cybersex.24 The Act actually seeks to punish cyber prostitution, white slave trade, andpornography for favor and consideration. This includes interactive prostitution and pornography, i.e., by webcam.25

The subject of Section 4(c)(1)lascivious exhibition of sexual organs or sexual activityis not novel. Article 201 ofthe RPC punishes "obscene publications and exhibitions and indecent shows." The Anti-Trafficking in Persons Actof 2003 penalizes those who "maintain or hire a person to engage in prostitution or pornography."26 The law definesprostitution as any act, transaction, scheme, or design involving the use of a person by another, for sexualintercourse or lascivious conduct in exchange for money, profit, or any other consideration.27

The case of Nogales v. People28 shows the extent to which the State can regulate materials that serve no otherpurpose than satisfy the market for violence, lust, or pornography.29 The Court weighed the property rights ofindividuals against the public welfare. Private property, if containing pornographic materials, may be forfeited anddestroyed. Likewise, engaging in sexual acts privately through internet connection, perceived by some as a right,has to be balanced with the mandate of the State to eradicate white slavery and the exploitation of women.

In any event, consenting adults are protected by the wealth of jurisprudence delineating the bounds of obscenity.30The Court will not declare Section 4(c)(1) unconstitutional where it stands a construction that makes it apply only topersons engaged in the business of maintaining, controlling, or operating, directly or indirectly, the lasciviousexhibition of sexual organs or sexual activity with the aid of a computer system as Congress has intended.




x x x x


x x x x

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(2) Child Pornography. The unlawful or prohibited acts defined and punishable by Republic Act No. 9775 or theAnti-Child Pornography Act of 2009, committed through a computer system: Provided, That the penalty to beimposed shall be (1) one degree higher than that provided for in Republic Act No. 9775.

It seems that the above merely expands the scope of the Anti-Child Pornography Act of 200931 (ACPA) to coveridentical activities in cyberspace. In theory, nothing prevents the government from invoking the ACPA whenprosecuting persons who commit child pornography using a computer system. Actually, ACPAs definition of childpornography already embraces the use of "electronic, mechanical, digital, optical, magnetic or any other means."Notably, no one has questioned this ACPA provision.

Of course, the law makes the penalty higher by one degree when the crime is committed in cyberspace. But no onecan complain since the intensity or duration of penalty is a legislative prerogative and there is rational basis for suchhigher penalty.32 The potential for uncontrolled proliferation of a particular piece of child pornography when uploadedin the cyberspace is incalculable.

Petitioners point out that the provision of ACPA that makes it unlawful for any person to "produce, direct,manufacture or create any form of child pornography"33 clearly relates to the prosecution of persons who aid andabet the core offenses that ACPA seeks to punish.34 Petitioners are wary that a person who merely doodles onpaper and imagines a sexual abuse of a 16-year-old is not criminally liable for producing child pornography but onewho formulates the idea on his laptop would be. Further, if the author bounces off his ideas on Twitter, anyone whoreplies to the tweet could be considered aiding and abetting a cybercrime.

The question of aiding and abetting the offense by simply commenting on it will be discussed elsewhere below. Fornow the Court must hold that the constitutionality of Section 4(c)(2) is not successfully challenged.




x x x x


x x x x

(3) Unsolicited Commercial Communications. The transmission of commercial electronic communication with theuse of computer system which seeks to advertise, sell, or offer for sale products and services are prohibited unless:

(i) There is prior affirmative consent from the recipient; or

(ii) The primary intent of the communication is for service and/or administrative announcements from thesender to its existing users, subscribers or customers; or

(iii) The following conditions are present:

(aa) The commercial electronic communication contains a simple, valid, and reliable way for therecipient to reject receipt of further commercial electronic messages (opt-out) from the same source;

(bb) The commercial electronic communication does not purposely disguise the source of the electronicmessage; and

(cc) The commercial electronic communication does not purposely include misleading information inany part of the message in order to induce the recipients to read the message.

The above penalizes the transmission of unsolicited commercial communications, also known as "spam." The term"spam" surfaced in early internet chat rooms and interactive fantasy games. One who repeats the same sentence orcomment was said to be making a "spam." The term referred to a Monty Pythons Flying Circus scene in whichactors would keep saying "Spam, Spam, Spam, and Spam" when reading options from a menu.35

The Government, represented by the Solicitor General, points out that unsolicited commercial communications orspams are a nuisance that wastes the storage and network capacities of internet service providers, reduces theefficiency of commerce and technology, and interferes with the owners peaceful enjoyment of his property.Transmitting spams amounts to trespass to ones privacy since the person sending out spams enters the recipientsdomain without prior permission. The OSG contends that commercial speech enjoys less protection in law.

But, firstly, the government presents no basis for holding that unsolicited electronic ads reduce the "efficiency of

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computers." Secondly, people, before the arrival of the age of computers, have already been receiving suchunsolicited ads by mail. These have never been outlawed as nuisance since people might have interest in such ads.What matters is that the recipient has the option of not opening or reading these mail ads. That is true with spams.Their recipients always have the option to delete or not to read them.

To prohibit the transmission of unsolicited ads would deny a person the right to read his emails, even unsolicitedcommercial ads addressed to him. Commercial speech is a separate category of speech which is not accorded thesame level of protection as that given to other constitutionally guaranteed forms of expression but is nonethelessentitled to protection.36 The State cannot rob him of this right without violating the constitutionally guaranteedfreedom of expression. Unsolicited advertisements are legitimate forms of expression.

Articles 353, 354, and 355 of the Penal Code

Section 4(c)(4) of the Cyber Crime Law

Petitioners dispute the constitutionality of both the penal code provisions on libel as well as Section 4(c)(4) of theCybercrime Prevention Act on cyberlibel.

The RPC provisions on libel read:

Art. 353. Definition of libel. A libel is public and malicious imputation of a crime, or of a vice or defect, real orimaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, orcontempt of a natural or juridical person, or to blacken the memory of one who is dead.

Art. 354. Requirement for publicity. Every defamatory imputation is presumed to be malicious, even if it be true, ifno good intention and justifiable motive for making it is shown, except in the following cases:

1. A private communication made by any person to another in the performance of any legal, moral or socialduty; and

2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative orother official proceedings which are not of confidential nature, or of any statement, report or speech deliveredin said proceedings, or of any other act performed by public officers in the exercise of their functions.

Art. 355. Libel means by writings or similar means. A libel committed by means of writing, printing, lithography,engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or any similar means, shallbe punished by prision correccional in its minimum and medium periods or a fine ranging from 200 to 6,000 pesos,or both, in addition to the civil action which may be brought by the offended party.

The libel provision of the cybercrime law, on the other hand, merely incorporates to form part of it the provisions ofthe RPC on libel. Thus Section 4(c)(4) reads:


x x x x


x x x x

(4) Libel. The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, asamended, committed through a computer system or any other similar means which may be devised in the future.

Petitioners lament that libel provisions of the penal code37 and, in effect, the libel provisions of the cybercrime lawcarry with them the requirement of "presumed malice" even when the latest jurisprudence already replaces it withthe higher standard of "actual malice" as a basis for conviction.38 Petitioners argue that inferring "presumed malice"from the accuseds defamatory statement by virtue of Article 354 of the penal code infringes on his constitutionallyguaranteed freedom of expression.

Petitioners would go further. They contend that the laws on libel should be stricken down as unconstitutional forotherwise good jurisprudence requiring "actual malice" could easily be overturned as the Court has done in Ferminv. People39 even where the offended parties happened to be public figures.

The elements of libel are: (a) the allegation of a discreditable act or condition concerning another; (b) publication ofthe charge; (c) identity of the person defamed; and (d) existence of malice.40

There is "actual malice" or malice in fact41 when the offender makes the defamatory statement with the knowledgethat it is false or with reckless disregard of whether it was false or not.42 The reckless disregard standard used here

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requires a high degree of awareness of probable falsity. There must be sufficient evidence to permit the conclusionthat the accused in fact entertained serious doubts as to the truth of the statement he published. Gross or evenextreme negligence is not sufficient to establish actual malice.43

The prosecution bears the burden of proving the presence of actual malice in instances where such element isrequired to establish guilt. The defense of absence of actual malice, even when the statement turns out to be false,is available where the offended party is a public official or a public figure, as in the cases of Vasquez (a barangayofficial) and Borjal (the Executive Director, First National Conference on Land Transportation). Since the penal codeand implicitly, the cybercrime law, mainly target libel against private persons, the Court recognizes that these lawsimply a stricter standard of "malice" to convict the author of a defamatory statement where the offended party is apublic figure. Societys interest and the maintenance of good government demand a full discussion of publicaffairs.44

Parenthetically, the Court cannot accept the proposition that its ruling in Fermin disregarded the higher standard ofactual malice or malice in fact when it found Cristinelli Fermin guilty of committing libel against complainants whowere public figures. Actually, the Court found the presence of malice in fact in that case. Thus:

It can be gleaned from her testimony that petitioner had the motive to make defamatory imputations againstcomplainants. Thus, petitioner cannot, by simply making a general denial, convince us that there was no malice onher part. Verily, not only was there malice in law, the article being malicious in itself, but there was also malice infact, as there was motive to talk ill against complainants during the electoral campaign. (Emphasis ours)

Indeed, the Court took into account the relatively wide leeway given to utterances against public figures in the abovecase, cinema and television personalities, when it modified the penalty of imprisonment to just a fine of P6,000.00.

But, where the offended party is a private individual, the prosecution need not prove the presence of malice. The lawexplicitly presumes its existence (malice in law) from the defamatory character of the assailed statement.45 For hisdefense, the accused must show that he has a justifiable reason for the defamatory statement even if it was in facttrue.46

Petitioners peddle the view that both the penal code and the Cybercrime Prevention Act violate the countrysobligations under the International Covenant of Civil and Political Rights (ICCPR). They point out that in Adonis v.Republic of the Philippines,47 the United Nations Human Rights Committee (UNHRC) cited its General Comment 34to the effect that penal defamation laws should include the defense of truth.

But General Comment 34 does not say that the truth of the defamatory statement should constitute an all-encompassing defense. As it happens, Article 361 recognizes truth as a defense but under the condition that theaccused has been prompted in making the statement by good motives and for justifiable ends. Thus:

Art. 361. Proof of the truth. In every criminal prosecution for libel, the truth may be given in evidence to the courtand if it appears that the matter charged as libelous is true, and, moreover, that it was published with good motivesand for justifiable ends, the defendants shall be acquitted.

Proof of the truth of an imputation of an act or omission not constituting a crime shall not be admitted, unless theimputation shall have been made against Government employees with respect to facts related to the discharge oftheir official duties.

In such cases if the defendant proves the truth of the imputation made by him, he shall be acquitted.

Besides, the UNHRC did not actually enjoin the Philippines, as petitioners urge, to decriminalize libel. It simplysuggested that defamation laws be crafted with care to ensure that they do not stifle freedom of expression.48Indeed, the ICCPR states that although everyone should enjoy freedom of expression, its exercise carries with itspecial duties and responsibilities. Free speech is not absolute. It is subject to certain restrictions, as may benecessary and as may be provided by law.49

The Court agrees with the Solicitor General that libel is not a constitutionally protected speech and that thegovernment has an obligation to protect private individuals from defamation. Indeed, cyberlibel is actually not a newcrime since Article 353, in relation to Article 355 of the penal code, already punishes it. In effect, Section 4(c)(4)above merely affirms that online defamation constitutes "similar means" for committing libel.

But the Courts acquiescence goes only insofar as the cybercrime law penalizes the author of the libelous statementor article. Cyberlibel brings with it certain intricacies, unheard of when the penal code provisions on libel wereenacted. The culture associated with internet media is distinct from that of print.

The internet is characterized as encouraging a freewheeling, anything-goes writing style.50 In a sense, they are aworld apart in terms of quickness of the readers reaction to defamatory statements posted in cyberspace, facilitatedby one-click reply options offered by the networking site as well as by the speed with which such reactions are

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disseminated down the line to other internet users. Whether these reactions to defamatory statement posted on theinternet constitute aiding and abetting libel, acts that Section 5 of the cybercrime law punishes, is another matterthat the Court will deal with next in relation to Section 5 of the law.

Section 5 of the Cybercrime Law

Section 5 provides:

Sec. 5. Other Offenses. The following acts shall also constitute an offense:

(a) Aiding or Abetting in the Commission of Cybercrime. Any person who willfully abets or aids in thecommission of any of the offenses enumerated in this Act shall be held liable.

(b) Attempt in the Commission of Cybercrime. Any person who willfully attempts to commit any of theoffenses enumerated in this Act shall be held liable.

Petitioners assail the constitutionality of Section 5 that renders criminally liable any person who willfully abets or aidsin the commission or attempts to commit any of the offenses enumerated as cybercrimes. It suffers fromoverbreadth, creating a chilling and deterrent effect on protected expression.

The Solicitor General contends, however, that the current body of jurisprudence and laws on aiding and abettingsufficiently protects the freedom of expression of "netizens," the multitude that avail themselves of the services ofthe internet. He points out that existing laws and jurisprudence sufficiently delineate the meaning of "aiding orabetting" a crime as to protect the innocent. The Solicitor General argues that plain, ordinary, and common usage isat times sufficient to guide law enforcement agencies in enforcing the law.51 The legislature is not required to defineevery single word contained in the laws they craft.

Aiding or abetting has of course well-defined meaning and application in existing laws. When a person aids or abetsanother in destroying a forest,52 smuggling merchandise into the country,53 or interfering in the peaceful picketing oflaborers,54 his action is essentially physical and so is susceptible to easy assessment as criminal in character.These forms of aiding or abetting lend themselves to the tests of common sense and human experience.

But, when it comes to certain cybercrimes, the waters are muddier and the line of sight is somewhat blurred. Theidea of "aiding or abetting" wrongdoings online threatens the heretofore popular and unchallenged dogmas ofcyberspace use.

According to the 2011 Southeast Asia Digital Consumer Report, 33% of Filipinos have accessed the internet withina year, translating to about 31 million users.55 Based on a recent survey, the Philippines ranks 6th in the top 10 mostengaged countries for social networking.56 Social networking sites build social relations among people who, forexample, share interests, activities, backgrounds, or real-life connections.57

Two of the most popular of these sites are Facebook and Twitter. As of late 2012, 1.2 billion people with sharedinterests use Facebook to get in touch.58 Users register at this site, create a personal profile or an open book of whothey are, add other users as friends, and exchange messages, including automatic notifications when they updatetheir profile.59 A user can post a statement, a photo, or a video on Facebook, which can be made visible to anyone,depending on the users privacy settings.

If the post is made available to the public, meaning to everyone and not only to his friends, anyone on Facebook canreact to the posting, clicking any of several buttons of preferences on the programs screen such as "Like,""Comment," or "Share." "Like" signifies that the reader likes the posting while "Comment" enables him to post onlinehis feelings or views about the same, such as "This is great!" When a Facebook user "Shares" a posting, the original"posting" will appear on his own Facebook profile, consequently making it visible to his down-line Facebook Friends.

Twitter, on the other hand, is an internet social networking and microblogging service that enables its users to sendand read short text-based messages of up to 140 characters. These are known as "Tweets." Microblogging is thepractice of posting small pieces of digital contentwhich could be in the form of text, pictures, links, short videos, orother mediaon the internet. Instead of friends, a Twitter user has "Followers," those who subscribe to thisparticular users posts, enabling them to read the same, and "Following," those whom this particular user issubscribed to, enabling him to read their posts. Like Facebook, a Twitter user can make his tweets available only tohis Followers, or to the general public. If a post is available to the public, any Twitter user can "Retweet" a givenposting. Retweeting is just reposting or republishing another persons tweet without the need of copying and pastingit.

In the cyberworld, there are many actors: a) the blogger who originates the assailed statement; b) the blog serviceprovider like Yahoo; c) the internet service provider like PLDT, Smart, Globe, or Sun; d) the internet caf that mayhave provided the computer used for posting the blog; e) the person who makes a favorable comment on the blog;and f) the person who posts a link to the blog site.60 Now, suppose Maria (a blogger) maintains a blog on

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WordPress.com (blog service provider). She needs the internet to access her blog so she subscribes to SunBroadband (Internet Service Provider).

One day, Maria posts on her internet account the statement that a certain married public official has an illicit affairwith a movie star. Linda, one of Marias friends who sees this post, comments online, "Yes, this is so true! They areso immoral." Marias original post is then multiplied by her friends and the latters friends, and down the line tofriends of friends almost ad infinitum. Nena, who is a stranger to both Maria and Linda, comes across this blog, findsit interesting and so shares the link to this apparently defamatory blog on her Twitter account. Nenas "Followers"then "Retweet" the link to that blog site.

Pamela, a Twitter user, stumbles upon a random persons "Retweet" of Nenas original tweet and posts this on herFacebook account. Immediately, Pamelas Facebook Friends start Liking and making Comments on the assailedposting. A lot of them even press the Share button, resulting in the further spread of the original posting into tens,hundreds, thousands, and greater postings.

The question is: are online postings such as "Liking" an openly defamatory statement, "Commenting" on it, or"Sharing" it with others, to be regarded as "aiding or abetting?" In libel in the physical world, if Nestor places on theoffice bulletin board a small poster that says, "Armand is a thief!," he could certainly be charged with libel. If Roger,seeing the poster, writes on it, "I like this!," that could not be libel since he did not author the poster. If Arthur,passing by and noticing the poster, writes on it, "Correct!," would that be libel? No, for he merely expressesagreement with the statement on the poster. He still is not its author. Besides, it is not clear if aiding or abetting libelin the physical world is a crime.

But suppose Nestor posts the blog, "Armand is a thief!" on a social networking site. Would a reader and his Friendsor Followers, availing themselves of any of the "Like," "Comment," and "Share" reactions, be guilty of aiding orabetting libel? And, in the complex world of cyberspace expressions of thoughts, when will one be liable for aiding orabetting cybercrimes? Where is the venue of the crime?

Except for the original author of the assailed statement, the rest (those who pressed Like, Comment and Share) areessentially knee-jerk sentiments of readers who may think little or haphazardly of their response to the originalposting. Will they be liable for aiding or abetting? And, considering the inherent impossibility of joining hundreds orthousands of responding "Friends" or "Followers" in the criminal charge to be filed in court, who will make a choiceas to who should go to jail for the outbreak of the challenged posting?

The old parameters for enforcing the traditional form of libel would be a square peg in a round hole when applied tocyberspace libel. Unless the legislature crafts a cyber libel law that takes into account its unique circumstances andculture, such law will tend to create a chilling effect on the millions that use this new medium of communication inviolation of their constitutionally-guaranteed right to freedom of expression.

The United States Supreme Court faced the same issue in Reno v. American Civil Liberties Union,61 a caseinvolving the constitutionality of the Communications Decency Act of 1996. The law prohibited (1) the knowingtransmission, by means of a telecommunications device, of

"obscene or indecent" communications to any recipient under 18 years of age; and (2) the knowing use of aninteractive computer service to send to a specific person or persons under 18 years of age or to display in a manneravailable to a person under 18 years of age communications that, in context, depict or describe, in terms "patentlyoffensive" as measured by contemporary community standards, sexual or excretory activities or organs.

Those who challenged the Act claim that the law violated the First Amendments guarantee of freedom of speech forbeing overbroad. The U.S. Supreme Court agreed and ruled:

The vagueness of the Communications Decency Act of 1996 (CDA), 47 U.S.C.S. 223, is a matter of specialconcern for two reasons. First, the CDA is a content-based regulation of speech. The vagueness of such aregulation raises special U.S. Const. amend. I concerns because of its obvious chilling effect on free speech.Second, the CDA is a criminal statute. In addition to the opprobrium and stigma of a criminal conviction, the CDAthreatens violators with penalties including up to two years in prison for each act of violation. The severity of criminalsanctions may well cause speakers to remain silent rather than communicate even arguably unlawful words, ideas,and images. As a practical matter, this increased deterrent effect, coupled with the risk of discriminatoryenforcement of vague regulations, poses greater U.S. Const. amend. I concerns than those implicated by certaincivil regulations.

x x x x

The Communications Decency Act of 1996 (CDA), 47 U.S.C.S. 223, presents a great threat of censoring speechthat, in fact, falls outside the statute's scope. Given the vague contours of the coverage of the statute, itunquestionably silences some speakers whose messages would be entitled to constitutional protection. That dangerprovides further reason for insisting that the statute not be overly broad. The CDAs burden on protected speech

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cannot be justified if it could be avoided by a more carefully drafted statute. (Emphasis ours)

Libel in the cyberspace can of course stain a persons image with just one click of the mouse. Scurrilous statementscan spread and travel fast across the globe like bad news. Moreover, cyberlibel often goes hand in hand withcyberbullying that oppresses the victim, his relatives, and friends, evoking from mild to disastrous reactions. Still, agovernmental purpose, which seeks to regulate the use of this cyberspace communication technology to protect apersons reputation and peace of mind, cannot adopt means that will unnecessarily and broadly sweep, invading thearea of protected freedoms.62

If such means are adopted, self-inhibition borne of fear of what sinister predicaments await internet users willsuppress otherwise robust discussion of public issues. Democracy will be threatened and with it, all liberties. Penallaws should provide reasonably clear guidelines for law enforcement officials and triers of facts to prevent arbitraryand discriminatory enforcement.63 The terms "aiding or abetting" constitute broad sweep that generates chillingeffect on those who express themselves through cyberspace posts, comments, and other messages.64 Hence,Section 5 of the cybercrime law that punishes "aiding or abetting" libel on the cyberspace is a nullity.

When a penal statute encroaches upon the freedom of speech, a facial challenge grounded on the void-for-vagueness doctrine is acceptable. The inapplicability of the doctrine must be carefully delineated. As Justice AntonioT. Carpio explained in his dissent in Romualdez v. Commission on Elections,65 "we must view these statements ofthe Court on the inapplicability of the overbreadth and vagueness doctrines to penal statutes as appropriate onlyinsofar as these doctrines are used to mount facial challenges to penal statutes not involving free speech."

In an "as applied" challenge, the petitioner who claims a violation of his constitutional right can raise anyconstitutional ground absence of due process, lack of fair notice, lack of ascertainable standards, overbreadth, orvagueness. Here, one can challenge the constitutionality of a statute only if he asserts a violation of his own rights. Itprohibits one from assailing the constitutionality of the statute based solely on the violation of the rights of thirdpersons not before the court. This rule is also known as the prohibition against third-party standing.66

But this rule admits of exceptions. A petitioner may for instance mount a "facial" challenge to the constitutionality ofa statute even if he claims no violation of his own rights under the assailed statute where it involves free speech ongrounds of overbreadth or vagueness of the statute.

The rationale for this exception is to counter the "chilling effect" on protected speech that comes from statutesviolating free speech. A person who does not know whether his speech constitutes a crime under an overbroad orvague law may simply restrain himself from speaking in order to avoid being charged of a crime. The overbroad orvague law thus chills him into silence.67

As already stated, the cyberspace is an incomparable, pervasive medium of communication. It is inevitable that anygovernment threat of punishment regarding certain uses of the medium creates a chilling effect on theconstitutionally-protected freedom of expression of the great masses that use it. In this case, the particularlycomplex web of interaction on social media websites would give law enforcers such latitude that they couldarbitrarily or selectively enforce the law.

Who is to decide when to prosecute persons who boost the visibility of a posting on the internet by liking it? Netizensare not given "fair notice" or warning as to what is criminal conduct and what is lawful conduct. When a case is filed,how will the court ascertain whether or not one netizens comment aided and abetted a cybercrime while anothercomment did not?

Of course, if the "Comment" does not merely react to the original posting but creates an altogether new defamatorystory against Armand like "He beats his wife and children," then that should be considered an original postingpublished on the internet. Both the penal code and the cybercrime law clearly punish authors of defamatorypublications. Make no mistake, libel destroys reputations that society values. Allowed to cascade in the internet, itwill destroy relationships and, under certain circumstances, will generate enmity and tension between social oreconomic groups, races, or religions, exacerbating existing tension in their relationships.

In regard to the crime that targets child pornography, when "Google procures, stores, and indexes childpornography and facilitates the completion of transactions involving the dissemination of child pornography," doesthis make Google and its users aiders and abettors in the commission of child pornography crimes?68 Byarshighlights a feature in the American law on child pornography that the Cybercrimes law lacksthe exemption of aprovider or notably a plain user of interactive computer service from civil liability for child pornography as follows:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of anyinformation provided by another information content provider and cannot be held civilly liable for any actionvoluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to beobscene...whether or not such material is constitutionally protected.69

When a person replies to a Tweet containing child pornography, he effectively republishes it whether wittingly or

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unwittingly. Does this make him a willing accomplice to the distribution of child pornography? When a userdownloads the Facebook mobile application, the user may give consent to Facebook to access his contact details.In this way, certain information is forwarded to third parties and unsolicited commercial communication could bedisseminated on the basis of this information.70 As the source of this information, is the user aiding the distribution ofthis communication? The legislature needs to address this clearly to relieve users of annoying fear of possiblecriminal prosecution.

Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness raises apprehension on the part ofinternet users because of its obvious chilling effect on the freedom of expression, especially since the crime ofaiding or abetting ensnares all the actors in the cyberspace front in a fuzzy way. What is more, as the petitionerspoint out, formal crimes such as libel are not punishable unless consummated.71 In the absence of legislation tracingthe interaction of netizens and their level of responsibility such as in other countries, Section 5, in relation to Section4(c)(4) on Libel, Section 4(c)(3) on Unsolicited Commercial Communications, and Section 4(c)(2) on ChildPornography, cannot stand scrutiny.

But the crime of aiding or abetting the commission of cybercrimes under Section 5 should be permitted to apply toSection 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on Data Interference,Section 4(a)(4) on System Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting,Section 4(b)(1) on Computer-related Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) onComputer-related Identity Theft, and Section 4(c)(1) on Cybersex. None of these offenses borders on the exerciseof the freedom of expression.

The crime of willfully attempting to commit any of these offenses is for the same reason not objectionable. A hackermay for instance have done all that is necessary to illegally access another partys computer system but the securityemployed by the systems lawful owner could frustrate his effort. Another hacker may have gained access tousernames and passwords of others but fail to use these because the system supervisor is alerted.72 If Section 5that punishes any person who willfully attempts to commit this specific offense is not upheld, the owner of theusername and password could not file a complaint against him for attempted hacking. But this is not right. Thehacker should not be freed from liability simply because of the vigilance of a lawful owner or his supervisor.

Petitioners of course claim that Section 5 lacks positive limits and could cover the innocent.73 While this may be truewith respect to cybercrimes that tend to sneak past the area of free expression, any attempt to commit the other actsspecified in Section 4(a)(1), Section 4(a)(2), Section 4(a)(3), Section 4(a)(4), Section 4(a)(5), Section 4(a)(6),Section 4(b)(1), Section 4(b)(2), Section 4(b)(3), and Section 4(c)(1) as well as the actors aiding and abetting thecommission of such acts can be identified with some reasonable certainty through adroit tracking of their works.Absent concrete proof of the same, the innocent will of course be spared.


Section 6 provides:

Sec. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if committedby, through and with the use of information and communications technologies shall be covered by the relevantprovisions of this Act: Provided, That the penalty to be imposed shall be one (1) degree higher than that provided forby the Revised Penal Code, as amended, and special laws, as the case may be.

Section 6 merely makes commission of existing crimes through the internet a qualifying circumstance. As theSolicitor General points out, there exists a substantial distinction between crimes committed through the use ofinformation and communications technology and similar crimes committed using other means. In using thetechnology in question, the offender often evades identification and is able to reach far more victims or causegreater harm. The distinction, therefore, creates a basis for higher penalties for cybercrimes.


Section 7 provides:

Sec. 7. Liability under Other Laws. A prosecution under this Act shall be without prejudice to any liability forviolation of any provision of the Revised Penal Code, as amended, or special laws.

The Solicitor General points out that Section 7 merely expresses the settled doctrine that a single set of acts may beprosecuted and penalized simultaneously under two laws, a special law and the Revised Penal Code. When twodifferent laws define two crimes, prior jeopardy as to one does not bar prosecution of the other although bothoffenses arise from the same fact, if each crime involves some important act which is not an essential element of theother.74 With the exception of the crimes of online libel and online child pornography, the Court would rather leavethe determination of the correct application of Section 7 to actual cases.

Online libel is different. There should be no question that if the published material on print, said to be libelous, is

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again posted online or vice versa, that identical material cannot be the subject of two separate libels. The twooffenses, one a violation of Article 353 of the Revised Penal Code and the other a violation of Section 4(c)(4) of R.A.10175 involve essentially the same elements and are in fact one and the same offense. Indeed, the OSG itselfclaims that online libel under Section 4(c)(4) is not a new crime but is one already punished under Article 353.Section 4(c)(4) merely establishes the computer system as another means of publication.75 Charging the offenderunder both laws would be a blatant violation of the proscription against double jeopardy.76

The same is true with child pornography committed online. Section 4(c)(2) merely expands the ACPAs scope so asto include identical activities in cyberspace. As previously discussed, ACPAs definition of child pornography in factalready covers the use of "electronic, mechanical, digital, optical, magnetic or any other means." Thus, charging theoffender under both Section 4(c)(2) and ACPA would likewise be tantamount to a violation of the constitutionalprohibition against double jeopardy.


Section 8 provides:

Sec. 8. Penalties. Any person found guilty of any of the punishable acts enumerated in Sections 4(a) and 4(b) ofthis Act shall be punished with imprisonment of prision mayor or a fine of at least Two hundred thousand pesos(PhP200,000.00) up to a maximum amount commensurate to the damage incurred or both.

Any person found guilty of the punishable act under Section 4(a)(5) shall be punished with imprisonment of prisionmayor or a fine of not more than Five hundred thousand pesos (PhP500,000.00) or both.

If punishable acts in Section 4(a) are committed against critical infrastructure, the penalty of reclusion temporal or afine of at least Five hundred thousand pesos (PhP500,000.00) up to maximum amount commensurate to thedamage incurred or both, shall be imposed.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(1) of this Act shall be punishedwith imprisonment of prision mayor or a fine of at least Two hundred thousand pesos (PhP200,000.00) but notexceeding One million pesos (PhP1,000,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(2) of this Act shall be punishedwith the penalties as enumerated in Republic Act No. 9775 or the "Anti-Child Pornography Act of 2009:" Provided,That the penalty to be imposed shall be one (1) degree higher than that provided for in Republic Act No. 9775, ifcommitted through a computer system.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(3) shall be punished withimprisonment of arresto mayor or a fine of at least Fifty thousand pesos (PhP50,000.00) but not exceeding Twohundred fifty thousand pesos (PhP250,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 5 shall be punished with imprisonmentone (1) degree lower than that of the prescribed penalty for the offense or a fine of at least One hundred thousandpesos (PhP100,000.00) but not exceeding Five hundred thousand pesos (PhP500,000.00) or both.

Section 8 provides for the penalties for the following crimes: Sections 4(a) on Offenses Against the Confidentiality,Integrity and Availability of Computer Data and Systems; 4(b) on Computer-related Offenses; 4(a)(5) on Misuse ofDevices; when the crime punishable under 4(a) is committed against critical infrastructure; 4(c)(1) on Cybersex; 4(c)(2) on Child Pornography; 4(c)(3) on Unsolicited Commercial Communications; and Section 5 on Aiding or Abetting,and Attempt in the Commission of Cybercrime.

The matter of fixing penalties for the commission of crimes is as a rule a legislative prerogative. Here the legislatureprescribed a measure of severe penalties for what it regards as deleterious cybercrimes. They appear proportionateto the evil sought to be punished. The power to determine penalties for offenses is not diluted or improperly wieldedsimply because at some prior time the act or omission was but an element of another offense or might just havebeen connected with another crime.77 Judges and magistrates can only interpret and apply them and have noauthority to modify or revise their range as determined by the legislative department.

The courts should not encroach on this prerogative of the lawmaking body.78


Section 12 provides:

Sec. 12. Real-Time Collection of Traffic Data. Law enforcement authorities, with due cause, shall be authorizedto collect or record by technical or electronic means traffic data in real-time associated with specifiedcommunications transmitted by means of a computer system.

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Traffic data refer only to the communications origin, destination, route, time, date, size, duration, or type ofunderlying service, but not content, nor identities.

All other data to be collected or seized or disclosed will require a court warrant.

Service providers are required to cooperate and assist law enforcement authorities in the collection or recording ofthe above-stated information.

The court warrant required under this section shall only be issued or granted upon written application and theexamination under oath or affirmation of the applicant and the witnesses he may produce and the showing: (1) thatthere are reasonable grounds to believe that any of the crimes enumerated hereinabove has been committed, or isbeing committed, or is about to be committed; (2) that there are reasonable grounds to believe that evidence thatwill be obtained is essential to the conviction of any person for, or to the solution of, or to the prevention of, any suchcrimes; and (3) that there are no other means readily available for obtaining such evidence.

Petitioners assail the grant to law enforcement agencies of the power to collect or record traffic data in real time astending to curtail civil liberties or provide opportunities for official abuse. They claim that data showing where digitalmessages come from, what kind they are, and where they are destined need not be incriminating to their senders orrecipients before they are to be protected. Petitioners invoke the right of every individual to privacy and to beprotected from government snooping into the messages or information that they send to one another.

The first question is whether or not Section 12 has a proper governmental purpose since a law may require thedisclosure of matters normally considered private but then only upon showing that such requirement has a rationalrelation to the purpose of the law,79 that there is a compelling State interest behind the law, and that the provisionitself is narrowly drawn.80 In assessing regulations affecting privacy rights, courts should balance the legitimateconcerns of the State against constitutional guarantees.81

Undoubtedly, the State has a compelling interest in enacting the cybercrime law for there is a need to put order tothe tremendous activities in cyberspace for public good.82 To do this, it is within the realm of reason that thegovernment should be able to monitor traffic data to enhance its ability to combat all sorts of cybercrimes.

Chapter IV of the cybercrime law, of which the collection or recording of traffic data is a part, aims to provide lawenforcement authorities with the power they need for spotting, preventing, and investigating crimes committed incyberspace. Crime-fighting is a state business. Indeed, as Chief Justice Sereno points out, the BudapestConvention on Cybercrimes requires signatory countries to adopt legislative measures to empower state authoritiesto collect or record "traffic data, in real time, associated with specified communications."83 And this is precisely whatSection 12 does. It empowers law enforcement agencies in this country to collect or record such data.

But is not evidence of yesterdays traffic data, like the scene of the crime after it has been committed, adequate forfighting cybercrimes and, therefore, real-time data is superfluous for that purpose? Evidently, it is not. Those whocommit the crimes of accessing a computer system without right,84 transmitting viruses,85 lasciviously exhibitingsexual organs or sexual activity for favor or consideration;86 and producing child pornography87 could easily evadedetection and prosecution by simply moving the physical location of their computers or laptops from day to day. Inthis digital age, the wicked can commit cybercrimes from virtually anywhere: from internet cafs, from kindred placesthat provide free internet services, and from unregistered mobile internet connectors. Criminals using cellphonesunder pre-paid arrangements and with unregistered SIM cards do not have listed addresses and can neither belocated nor identified. There are many ways the cyber criminals can quickly erase their tracks. Those who peddlechild pornography could use relays of computers to mislead law enforcement authorities regarding their places ofoperations. Evidently, it is only real-time traffic data collection or recording and a subsequent recourse to court-issued search and seizure warrant that can succeed in ferreting them out.

Petitioners of course point out that the provisions of Section 12 are too broad and do not provide ample safeguardsagainst crossing legal boundaries and invading the peoples right to privacy. The concern is understandable. Indeed,the Court recognizes in Morfe v. Mutuc88 that certain constitutional guarantees work together to create zones ofprivacy wherein governmental powers may not intrude, and that there exists an independent constitutional right ofprivacy. Such right to be left alone has been regarded as the beginning of all freedoms.89

But that right is not unqualified. In Whalen v. Roe,90 the United States Supreme Court classified privacy into twocategories: decisional privacy and informational privacy. Decisional privacy involves the right to independence inmaking certain important decisions, while informational privacy refers to the interest in avoiding disclosure ofpersonal matters. It is the latter rightthe right to informational privacythat those who oppose governmentcollection or recording of traffic data in real-time seek to protect.

Informational privacy has two aspects: the right not to have private information disclosed, and the right to live freelywithout surveillance and intrusion.91 In determining whether or not a matter is entitled to the right to privacy, thisCourt has laid down a two-fold test. The first is a subjective test, where one claiming the right must have an actual orlegitimate expectation of privacy over a certain matter. The second is an objective test, where his or her expectation

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of privacy must be one society is prepared to accept as objectively reasonable.92

Since the validity of the cybercrime law is being challenged, not in relation to its application to a particular person orgroup, petitioners challenge to Section 12 applies to all information and communications technology (ICT) users,meaning the large segment of the population who use all sorts of electronic devices to communicate with oneanother. Consequently, the expectation of privacy is to be measured from the general publics point of view. Withoutreasonable expectation of privacy, the right to it would have no basis in fact.

As the Solicitor General points out, an ordinary ICT user who courses his communication through a service provider,must of necessity disclose to the latter, a third person, the traffic data needed for connecting him to the recipient ICTuser. For example, an ICT user who writes a text message intended for another ICT user must furnish his serviceprovider with his cellphone number and the cellphone number of his recipient, accompanying the message sent. It isthis information that creates the traffic data. Transmitting communications is akin to putting a letter in an envelopeproperly addressed, sealing it closed, and sending it through the postal service. Those who post letters have noexpectations that no one will read the information appearing outside the envelope.

Computer datamessages of all kindstravel across the internet in packets and in a way that may be likened toparcels of letters or things that are sent through the posts. When data is sent from any one source, the content isbroken up into packets and around each of these packets is a wrapper or header. This header contains the trafficdata: information that tells computers where the packet originated, what kind of data is in the packet (SMS, voicecall, video, internet chat messages, email, online browsing data, etc.), where the packet is going, and how thepacket fits together with other packets.93 The difference is that traffic data sent through the internet at times acrossthe ocean do not disclose the actual names and addresses (residential or office) of the sender and the recipient,only their coded internet protocol (IP) addresses. The packets travel from one computer system to another wheretheir contents are pieced back together.

Section 12 does not permit law enforcement authorities to look into the contents of the messages and uncover theidentities of the sender and the recipient.

For example, when one calls to speak to another through his cellphone, the service providers communicationssystem will put his voice message into packets and send them to the other persons cellphone where they arerefitted together and heard. The latters spoken reply is sent to the caller in the same way. To be connected by theservice provider, the sender reveals his cellphone number to the service provider when he puts his call through. Healso reveals the cellphone number to the person he calls. The other ways of communicating electronically follow thesame basic pattern.

In Smith v. Maryland,94 cited by the Solicitor General, the United States Supreme Court reasoned that telephoneusers in the 70s must realize that they necessarily convey phone numbers to the telephone company in order tocomplete a call. That Court ruled that even if there is an expectation that phone numbers one dials should remainprivate, such expectation is not one that society is prepared to recognize as reasonable.

In much the same way, ICT users must know that they cannot communicate or exchange data with one anotherover cyberspace except through some service providers to whom they must submit certain traffic data that areneeded for a successful cyberspace communication. The conveyance of this data takes them out of the privatesphere, making the expectation to privacy in regard to them an expectation that society is not prepared to recognizeas reasonable.

The Court, however, agrees with Justices Carpio and Brion that when seemingly random bits of traffic data aregathered in bulk, pooled together, and analyzed, they reveal patterns of activities which can then be used to createprofiles of the persons under surveillance. With enough traffic data, analysts may be able to determine a personsclose associations, religious views, political affiliations, even sexual preferences. Such information is likely beyondwhat the public may expect to be disclosed, and clearly falls within matters protected by the right to privacy. But hasthe procedure that Section 12 of the law provides been drawn narrowly enough to protect individual rights?

Section 12 empowers law enforcement authorities, "with due cause," to collect or record by technical or electronicmeans traffic data in real-time. Petitioners point out that the phrase "due cause" has no precedent in law orjurisprudence and that whether there is due cause or not is left to the discretion of the police. Replying to this, theSolicitor General asserts that Congress is not required to define the meaning of every word it uses in drafting thelaw.

Indeed, courts are able to save vague provisions of law through statutory construction. But the cybercrime law,dealing with a novel situation, fails to hint at the meaning it intends for the phrase "due cause." The Solicitor Generalsuggests that "due cause" should mean "just reason or motive" and "adherence to a lawful procedure." But theCourt cannot draw this meaning since Section 12 does not even bother to relate the collection of data to theprobable commission of a particular crime. It just says, "with due cause," thus justifying a general gathering of data.It is akin to the use of a general search warrant that the Constitution prohibits.

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Due cause is also

Documents

Disni v. Sec. of Justice 2014